DAVID KAANAANA et al., Plaintiffs and Appellants, v. BARRETT BUSINESS SERVICES, INC., et al, Defendants and Respondents.
B276420, B279838
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Filed 11/30/18
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. BC496090)
Hayes Pawlenko, Matthew B. Hayes and Kye D. Pawlenko for Plaintiffs and Appellants.
Hinshaw & Culbertson, Frederick J. Ufkes and Filomena E. Meyer for Defendants and Respondents.
These are appeals from a judgment and a postjudgment attorney fee order in a class action alleging
The trial court found (1) the prevailing wage law did not apply to plaintiffs; and (2) the
First, the prevailing wage law applies; under well-established principles of statutory interpretation, plaintiffs were engaged in “public work” within the meaning of the
Because plaintiffs were entitled to payment of minimum wages for actual time they were required to work during their meal periods, defendants may be subject to the “waiting time penalties” that apply when an employer willfully fails to pay any wages of an employee who is discharged or quits (
Finally, because the case must be remanded to recalculate plaintiffs’ recovery, we will not consider plaintiffs’ claims of error in the attorney fee award, as that award is vacated to permit the trial court to reconsider attorney fees following remand.
FACTS AND PROCEDURAL BACKGROUND
Plaintiffs sued defendant Barrett Business Services, Inc., a company providing staffing and management services. Defendant provided employees for two publicly owned and operated recycling facilities under contracts with Los Angeles County Sanitation Districts. The class consisted of “belt sorters” employed by defendant at those facilities between April 15, 2011, and September 30, 2013. Plaintiffs alleged failure to pay minimum wages, overtime, and all wages owing at termination (all based at least in part on alleged noncompliance with the prevailing wage law); failure to provide meal periods; unfair
Defendant brought a motion to strike the prevailing wage claims, contending it was not required to pay the prevailing wage as a matter of law. The trial court granted the motion in January 2016, concluding the work plaintiffs performed sorting recyclables did not come within the definition of “public works” under the prevailing wage law.
Thereafter, the parties stipulated to certain facts, and to the admissibility and authenticity of certain evidence, for purposes of trial on plaintiffs’ other claims. Central to these claims was defendant‘s policy of requiring belt sorters to return to their stations at the conveyor belt before the end of their 30-minute meal break. The stipulated facts included, in addition to points already mentioned, the following.
The class members are all former employees of defendant. The belt sorters stood at sorting stations along a conveyor belt, removing recyclable materials from the conveyor belt and placing them in receptacles at their sorting stations.
The lead belt sorters would turn the belt off for meal breaks, and the belt sorters were required to clock out for meal breaks, which they all took together. The lead belt sorter was responsible for rounding up the belt sorters to clock back in after
The parties further stipulated that deposition testimony could be substituted for live testimony for any witness, and the deposition transcripts were deemed authentic. Only one witness presented live testimony at the trial: plaintiffs’ expert witness on damages, who was cross-examined by defendant. The parties filed pretrial and posttrial briefs, and the court heard oral arguments after the posttrial briefing.
Plaintiffs asserted two theories of recovery on the wage and hour violations, both based on the meal period defendant provided. The first was that defendant failed to provide at least 30 minutes of duty-free time during meal periods, requiring plaintiffs to return to the conveyor belt (which was turned off for just 30 minutes during meal periods) three to five minutes before it restarted. This made defendant liable under
Plaintiffs’ second theory of recovery was that, by not counting the improperly shortened meal periods as “time worked,” defendant did not pay plaintiffs “the legal minimum wage” under
In addition, plaintiffs contended they were entitled to “waiting time penalties” that apply when an employer willfully fails to pay “any wages of an employee who is discharged or who quits.” (
The trial court‘s verdict was as follows:
The evidence established that employees lost three to five minutes of a 30-minute break. The court awarded $227,190.73 “for the 22,220 instances in which the unrounded time records reflect breaks of less than 30 minutes.”
“[F]or the employees who lost three to five minutes of a 30 minute break, they are not entitled to recover minimum wages for all or any portion of the meal period. Their exclusive remedy is a meal period premium under
No waiting time penalties applied, because no minimum wages were owed for the shortened meal periods “and the meal
The court awarded the class $53,293.50 in civil penalties under PAGA. Plaintiffs sought civil penalties under
Plaintiffs filed a timely notice of appeal.
Plaintiffs then sought attorney fees under PAGA and
We ordered the two appeals consolidated for purposes of oral argument and decision.10
1. The prevailing wage claim
a. Overview of prevailing wage law
Plaintiffs argue that performing recycling sorting work pursuant to defendant‘s contract with County Sanitation Districts constitutes “public work,” which entitles them to payment of a prevailing wage. The trial court concluded the work was not “public work,” because it was not in the nature of construction work. We disagree with this narrow construction of “public work.”
The prevailing wage law provides that, “[e]xcept for public works projects of one thousand dollars ($1,000) or less, not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work fixed as provided in this chapter, shall be paid to all workers employed on public works.” (
The sole prevailing wage law issue presented by these appeals is whether plaintiffs’ work, consisting of the belt sorting of recyclables at recycling facilities owned by Los Angeles County Sanitation Districts, constitutes “public work.” This is a question of law subject to our independent judgment. (City of Long Beach v. Department of Industrial Relations (2004) 34 Cal.4th 942, 949.)
A definition of “public works” is provided by
b. Analysis
i. Introduction
Preliminarily, we note that the structure of
Defendant‘s argument that
ii. The statutory language
Our focus begins with the definition of “public works” found in
We find significant that the
The interrelationship of several statutes becomes relevant in light of defendant‘s argument that
iii. The relevant legislative history
The prevailing wage law was enacted in 1931, when several jurisdictions enacted such laws “in response to the economic conditions of the Depression, when the oversupply of labor was exploited by unscrupulous contractors to win government contracts when private construction virtually stopped. [Citation.]” (State Building & Construction Trades Council of California v. Duncan (2008) 162 Cal.App.4th 289, 294 (Duncan).) There have been a number of economic upswings and downturns since 1931, but the prevailing wage law has remained and, in fact, has been expanded in coverage, leading to the conclusion
As it is now understood, “[t]he overall purpose of the prevailing wage law . . . is to benefit and protect employees on public works projects. This general objective subsumes within it a number of specific goals: to protect employees from substandard wages that might be paid if contractors could recruit labor from distant cheap-labor areas; to permit union contractors to compete with nonunion contractors; to benefit the public through the superior efficiency of well-paid employees; and to compensate nonpublic employees with higher wages for the absence of job security and employment benefits enjoyed by public employees.” (Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 987.) We see nothing in the legislative history that suggests the Legislature intended to exclude from these benefits employees contracted to work for irrigation, utility, and similar
The history of the adoption of the key language supports our conclusion. The prevailing wage law was originally enacted in 1931. Section 1 provided that the prevailing wage was to be paid to all laborers, workmen and mechanics “engaged in the construction of public works.” (Stats. 1931, ch. 397, § 1.) The provision identified the state and certain political subdivisions (e.g., county, city, town) as the entities which could contract for public works. (Ibid.) Section 4 of the statute provided, in pertinent part, that “[c]onstruction work done for irrigation, utility, reclamation, improvement and other districts” shall be considered “public works” within the meaning of the statute. (Italics added.)
In 1937, California enacted the
It is noteworthy that the 1937 statute removed the word “construction” from this second clause as it had appeared in section 4 of the 1931 prevailing wage law quoted above. The question is why.
The
In sum, prior to the codification of the
The trial court in this case relied heavily on a 2005 administrative opinion of the Department of Industrial Relations (Department), which concluded that
In 2002, the Department issued an opinion on whether hauling wastewater materials from a wastewater treatment plant, for a public utility district, constituted a “public work” subject to the prevailing wage law. The Department concluded that it was a “public work,” within the meaning of
In 2005, the Department disagreed with its 2002 opinion, and de-designated it as precedential. In contrast to that opinion, the Department held that the hauling of biosolids from a water treatment plant for a sanitation district did not constitute a “public work.” In the course of its discussion, it specifically concluded that “the most reasonable way to define the scope of
Finally, in 2016, the Department reversed itself on
The trial court relied heavily on the second, Biosolids, opinion, concluding that it was entitled to deference, and, ultimately, “carrie[d] decisive weight.” Under the circumstances, however, we conclude that it is entitled to “not much, if any, deference.” (Duncan, supra, 162 Cal.App.4th at p. 302.) Indeed, there were three reasons given in the Duncan opinion for why the Department‘s determination should be given minimal deference
“In short, while we consider the Director‘s [of the Department] current interpretation of
v. Existing case authority
Although it does not appear that any case has directly addressed the precise issue before us, one case has concluded, as
Azusa Land Partners v. Department of Industrial Relations (2011) 191 Cal.App.4th 1 considered the mirror image of the argument raised by defendant in this case. In Azusa, the contractor was hired to do a large construction project, which was funded, in part, by bonds obtained by an improvement district. The issue was whether the entire project constituted a public work, or if only that portion paid for by the improvement district did. (Id. at pp. 10-11.) Under the plain language of
Our conclusion that
Defendant‘s argument that the operations exception applies is raised for the first time in its respondent‘s brief on appeal; it did not raise this argument in its motion to strike in the trial court. We therefore consider the argument waived. In any event, it is foreclosed by the plain language of the statute. While work done for “irrigation, utility, reclamation, and improvement districts, and other districts of this type” is defined as public work, the operations exception applies only to the specific “operation of the irrigation or drainage system of any irrigation or reclamation district,” not the operation of all of the identified districts in general. The operation of a recycling system for a sanitation district is not the operation of an irrigation or drainage system of an irrigation or reclamation district. The exception simply does not apply.
c. Conclusion
In sum, we hold that the “construction” language limiting the definition of “public works” in
2. The claim of failure to pay minimum wages
As we have observed, there is no issue on this appeal about the propriety of the judgment to the extent it awarded plaintiffs meal period premium pay under
The disputed issue is whether or not, in addition to recovering an hour of premium pay, plaintiffs are also entitled to recover wages for the three to five minutes they were required to work during their meal periods.
As indicated earlier, the trial court concluded that employees “who lost three to five minutes of a 30 minute break” were not entitled to recover wages “for all or any portion of the meal period.” Plaintiffs challenge the trial court‘s conclusion that premium pay for the meal period violation is their exclusive remedy, contending that the “the right to be paid the minimum wage” for “time worked during meal periods,” and “the right to a
We agree with plaintiffs to this extent: the right to be free from employer control for a 30-minute meal period, and the right to be paid for time worked during that meal period, are distinct rights with distinct remedies. The remedy for an employer violation of the former right is the hour of premium pay provided under
a. The legal background
The Supreme Court has described the origin and development of California law governing wages and working conditions in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1026-1027 (Brinker). As pertinent here, Brinker explained that nearly a century ago, the Legislature established the Industrial Welfare Commission (IWC), and delegated to it the authority “to investigate various industries and promulgate wage orders fixing for each industry minimum wages, maximum hours of work, and conditions of labor.” (Id. at p. 1026.) In 1916, the IWC “began issuing industry- and occupationwide wage orders specifying minimum requirements with respect to wages, hours, and working conditions [citation]. In addition, the Legislature has from time to time enacted statutes to regulate wages, hours, and working conditions directly. Consequently, wage and hour
Brinker tells us the statutory provisions ” ‘are to be liberally construed with an eye to promoting [employee] protection.’ ” (Brinker, supra, 53 Cal.4th at pp. 1026-1027.) The IWC‘s wage orders “are entitled to ‘extraordinary deference, both in upholding their validity and in enforcing their specific terms.’ ” (Id. at p. 1027.) “[T]he relevant wage order provisions must be interpreted in the manner that best effectuates that protective intent.” (Ibid.) Indeed, “[t]he IWC‘s wage orders are to be accorded the same dignity as statutes. They are ‘presumptively valid’ legislative regulations of the employment relationship [citation], regulations that must be given ‘independent effect’ separate and apart from any statutory enactments [citation]. To the extent a wage order and a statute overlap, we will seek to harmonize them, as we would with any two statutes.” (Ibid.)
Here, wage order No. 4, governing professional, technical, clerical, mechanical and similar occupations, applies. The wage order requires the employer to “pay to each employee . . . not less than the applicable minimum wage for all hours worked,” and “hours worked” means “the time during which an employee is subject to the control of an employer . . . .” (
There are two pertinent provisions of the wage order governing meal periods. The first – which has been in the wage order in substantially the same form for many decades – states:
“(A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day‘s work the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an ‘on duty’ meal period and counted as time worked. An ‘on duty’ meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.” (
Cal. Code Regs., tit. 8, § 11040, subd. 11(A) .)
The second pertinent provision was added to the wage order as of October 1, 2000. It states:
“(B) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of
pay at the employee‘s regular rate of compensation for each workday that the meal period is not provided.” ( Cal. Code Regs., tit. 8, § 11040, subd. 11(B) .)
The IWC explained, in its “Statement as to the Basis” for the amendment, that it had “heard testimony and received correspondence regarding the lack of employer compliance with the meal and rest period requirements of its wage orders. The IWC therefore added a provision to this section that requires an employer to pay an employee one additional hour of pay at the employee‘s regular rate of pay for each work day that a meal period is not provided.” (IWC wage orders Nos. 1 – 13, 15 & 17, Jan. 1, 2001, Statement as to the Basis, § 11, p. 20, <https://www.dir.ca.gov/IWC/wageorderindustriesprior.htm> [as of Nov. 30, 2018].)
The latter provision of the wage order became effective shortly before
b. Contentions and conclusions
Plaintiffs rely on the meal period provisions of the wage order to insist that, in addition to the premium pay remedy under
c. Defendant‘s contention
We begin with the observation that plaintiffs have the right to be paid for all hours worked. “Hours worked” is defined as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” (
Defendant insists that premium pay is the exclusive remedy for a meal period violation. But there was both a meal period violation (failure to provide a 30-minute period free from employer control) and a minimum wage violation (failure to pay wages for time actually worked during the meal period). These are violations of separate rights for which there are separate statutory remedies.
Defendant says the Supreme Court “firmly debunked” the idea that plaintiffs could recover for both violations in Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244 (Kirby), but Kirby did no such thing. Indeed, Kirby, like other authorities, confirms the distinct regulatory objectives of protecting wages and ensuring the health and welfare of workers. (See also
There was no contention in Kirby that minimum wages were owed for hours worked during meal periods. Kirby was an attorney fee case, and concluded, among other things, that ”
Nothing the court said in Kirby is inconsistent with a plaintiff‘s right to recover both minimum wages for time worked during meal periods and premium pay for the meal period violation. Quite the contrary. This is not a case where defendant paid the employees for all hours worked and simply failed to provide a meal period during that time. Defendant made the employees work for part of the meal period, did not pay them for the time worked, and in addition did not comply with the meal period requirement – which is “not aimed at protecting or providing employees’ wages,” but instead is concerned with “ensuring the health and welfare of employees by requiring that employers provide meal and rest periods as mandated by the IWC.” (Kirby, supra, 53 Cal.4th at p. 1255.)
In a case involving a driver transporting hazardous materials who was required to remain with or close to his truck at all times, the DLSE opined: “[A] meal period provided to a Company driver transporting hazardous materials who is not relieved of his or her duty to remain with or remain close to his or her truck as a consequence of their obligations under [federal law] is not an off-duty meal period . . . . [T]he meal period under these circumstances is considered an on-duty meal period and must be counted as time worked. Furthermore, unless the conditions are met for an on-duty meal period as required under [the wage order], such a driver would be entitled to one additional hour of pay at the employee‘s regular rate of compensation under Labor Code [section] 226.7 and [the wage order].” (Meal Periods for Fuel Carriers Subject to Federal Safety Regulations (June 9, 2009), pp. 5-6 italics added, <https://www.dir.ca.gov/dlse/opinions/ 2009-06-09.pdf> [as of Nov. 30, 2018] (Fuel Carriers).)
Brinker noted with approval the DLSE‘s position that both remedies are available. In the course of the court‘s discussion of the fact that an employer must relieve its employee of all duty during a meal period, but need not ensure that no work is done, the court said this: “[B]ecause the defining characteristic of on-
“If work does continue, the employer will not be liable for premium pay. At most, it will be liable for straight pay, and then only when it ‘knew or reasonably should have known that the worker was working through the authorized meal period.’ [Citations.] The DLSE correctly explains the distinction in its amicus curiae brief: ‘The employer that refuses to relinquish control over employees during an owed meal period violates the duty to provide the meal period and owes compensation [and premium pay] for hours worked. The employer that relinquishes control but nonetheless knows or has reason to know that the employee is performing work during the meal period, has not violated its meal period obligations [and owes no premium pay], but nonetheless owes regular compensation to its employees for time worked.’ ” (Brinker, supra, 53 Cal.4th at p. 1040, fn. 19 [bracketing of “and premium pay” in original; boldface & italics added].)
Accordingly, the trial court erred when it concluded plaintiffs could not recover minimum wages for time worked during their meal periods. We therefore reverse the judgment on that point and remand with instructions to award minimum wages for time worked during the meal periods.
d. Plaintiffs’ contention
That brings us to plaintiffs’ contention that, because they were not relieved of all duty for the entire 30-minute meal period,
Plaintiffs rely on this language in the IWC‘s wage order: “Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an on duty meal period and counted as time worked.” From this principle, plaintiffs conclude their truncated meal periods were transformed into on-duty meal periods, and therefore must be “counted as time worked” under the wage order.
Plaintiffs correctly point out that the equivalent of an on duty meal period may exist, even if the conditions for a legally permissible on duty meal period do not. That much is obvious from the authorities we have just discussed. And, we acknowledge that, if considered in isolation, the wage order provision just quoted could be construed as plaintiffs suggest. But we cannot construe the provision in isolation. Instead, we must construe it in conjunction with the rest of the wage order and with the statute, all of which we must harmonize. (See Brinker, supra, 53 Cal.4th at p. 1027.) Doing so, we necessarily conclude that a truncated meal period, such as occurred in this case, is not in every case the equivalent of an on-duty meal period. This conclusion flows from settled legal principles, from the history of the wage order, and from the circumstances of this case, which are fundamentally different from those in the authorities plaintiffs cite.
At the outset, we bear in mind that plaintiffs are asserting a claim of failure to pay the minimum wage. The settled legal principle applicable to a claim for minimum wages is that
In this case plaintiffs were entirely free of employer control for (on average) 26 minutes of the 30-minute period. Thus the “defining characteristic of on-duty meal periods” – “failing to relieve an employee of duty” (Brinker, supra, 53 Cal.4th at p. 1039) – does not exist for most of the 30-minute meal period. Plaintiffs were “actually reliev[ed] . . . of all duty” during that time (the defining characteristic of an off-duty meal period). (Id. at p. 1040.) In other words, this case involves meal periods that were partly on-duty but mostly off-duty: plaintiffs were subjected to defendant‘s control for an average of four minutes, and were otherwise “free to come and go as they please.” (Id. at p. 1037 It is clear, then, that plaintiffs’ assertion they should be paid the minimum wage for the entire 30-minute meal period is not actually based on minimum wage requirements; it is based solely on the meal period provisions of the wage order. But both the wage order as amended (and the statute) impose only one consequence for “fail[ure] to provide an employee a meal period in accordance with the applicable provisions of this order,” and that is “one (1) hour of pay at the employee‘s regular rate of compensation for each workday that the meal period is not provided.” (Cal. Code Regs., tit. 8, § 11040, subd. 11(B).) Plaintiffs, in effect, seek to increase the consequences for a meal period violation to one and a half hours of pay instead of one hour. There is no basis in the statute or wage order, and no other legal authority, for doing so. The history of the meal period provisions of the wage order and the DLSE‘s implementation of those provisions confirm that neither the IWC nor the Legislature intended the result plaintiffs seek. First, the wage order provision on which plaintiffs rely – requiring the 30-minute meal period to be “counted as time worked” unless the employee is relieved of all duty – pre-dated by many decades the IWC‘s amendment to the wage order in 2000 (and the enactment of section 226.7) that provided a remedy for meal period violations. (The same language is in the 1976 wage order (IWC wage order No. 4-76, § 11(A) (effective Oct. 18, 1976)), and the language dates back in substance to 1947.)19 Thus, before the amendment to the wage order, and the passage of section 226.7, both of which occurred in 2000, there was no remedy for a meal period violation. The only “remedy” for any failure to relieve the employee of all duty for 30 minutes was to count the 30-minute meal period as time worked, necessarily requiring compensation for that time. As the IWC observed when it amended the wage order, that “remedy” did not work: the IWC amended the order because of “the lack of employer compliance with the meal and rest period requirements of its wage orders.” After the amendment, by contrast, the employer owed compensation (as it always had) ” ‘for hours worked’ ” and owed an additional hour of pay (premium pay) for the meal period violation. (See Brinker, supra, 53 Cal.4th at p. 1040, fn. 19.) Second, the legal authorities, both before and after the IWC and the Legislature added a remedy for meal period violations in 2000, involved cases where the employees were subject to the employer‘s control throughout the statutorily mandated meal period. In those circumstances, the employee was entitled to payment of wages for the whole meal period, because the employee was subject to employer control during the entire meal period. (See, for example, Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 979 [employees who were required to remain on the work premises during their lunch hour had to be compensated for that time under the definition of “hours worked“], disapproved on another point in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 574; see also Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 842 [citing Bono as holding that “time employee is required to remain at workplace during lunch constitutes hours worked even when relieved of all job duties“]; Fuel Carriers, supra, <https://www.dir.ca.gov/dlse/opinions/2009-06-09.pdf>, p. 5 [where truck driver was required by law to remain with or close to truck during meal period, the meal period was considered on duty and had to be counted as time worked] [as of Nov. 30, 2018].) None of those authorities addresses a circumstance where, as here, the employee is provided a control-free meal period, albeit not for the full 30 minutes. Had such circumstances occurred prior to the wage order amendment and section 226.7, it may well have been appropriate to require payment for the whole 30-minute meal period, as no other remedy existed for the meal period violation. But with the amended wage order and the passage of section 226.7, the IWC and the Legislature went a step further, by expressly requiring the employer to compensate the employee with an hour‘s pay, not just 30 minutes, at the regular rate of pay, for the meal period violation. There is no evidence the IWC or the Legislature intended to require the employer to compensate the employee for an hour and 30 minutes for a meal period violation, unless the employee actually worked (or was subject to the employer‘s control) for the entire 30-minute period. In short, the wage order provision plaintiffs cite has no application where the employee is fully compensated, both for his or her time worked during the meal period and for the meal period violation. Plaintiffs place particular reliance on language in a DLSE opinion letter issued in 1992, stating that “[s]ince the IWC orders require that the employee have a duty-free meal period, any ‘duty’ which interferes with the meal period (even if the ‘duty’ required de minimis time) would require that the whole of the meal period be paid.” (Use of ‘Beepers,’ Jan. 28, 1992, <https://www.dir.ca.gov/dlse/opinions/1992-01-28.pdf>, p. 3 [as of Nov. 30, 2018] (Use of Beepers). But that case was decided years before the wage order was amended and section 226.7 was enacted. And the circumstances in Use of Beepers were not significantly different from those in other cases where the DLSE has required payment of wages for the entire 30-minute meal period. In Use of Beepers, the employee was required to wear a pager during the entirety of the meal period and to respond to any pager call that might occur during that time. It was in that context that the DLSE opined that, if the employee handled a pager call during the meal period, even if the call required “de minimis” time, “the whole of the meal period [must] be paid.” (Use of Beepers, at p. 3.) Significantly, the DLSE concluded that if the employee “who is simply required to wear the pager is not called upon during the meal period to respond, there is no requirement that the meal period be paid for,” but “if the employee responds, as required, to a pager call during the meal period, the whole of the meal period must be compensated.” (Ibid.) This opinion letter does not support plaintiffs’ position for the additional reason that the DLSE did not conclude that being subject to the employer‘s control as a consequence of having to wear and respond to a pager was compensable for the entire meal period unless the employee had to respond to a page.20 In short, there is no contradiction between the DLSE‘s Use of Beepers opinion and the conclusion we reach here. Use of Beepers, pre-dating the amended wage order, required payment of 30 minutes in wages for requiring an employee to work during any part of the 30-minute meal period. The amended wage order requires more, expressly providing a remedy of one hour‘s pay for any intrusion, however small, into the meal period. We can require no more, so long as employees are also compensated for all time worked during any shortened meal period. Plaintiffs also rely on language from a 2002 DLSE opinion that responded (in the negative) to the question whether an employer in the fast food industry could have an on-duty meal period arrangement with an employee. As a prelude to its analysis, the opinion recited the general rule requiring an off duty meal period and its requirements (no requirement to work, no employer control, 30-minute minimum), continuing: “If any of these conditions are not present, the time, if any, during which the employee is permitted to eat his or her meal is considered on duty time, which is treated as ‘hours worked’ for which the employee must be paid at his or her regular rate of pay.” (On-Duty Meal Periods, Sept. 4, 2002, p. 2, <https://www.dir.ca.gov/dlse/opinions/2002-09-04.pdf>[as of Nov. 30, 2018].) We see nothing in this opinion that is pertinent to the very different facts of this case. Like the other rulings, the DLSE‘s opinion contemplated an employee on duty during the 30-minute meal period – not a shortened meal period. So far as we are aware, the DLSE has not offered an opinion on circumstances comparable to those at issue here.21 To summarize: No authority supports the claim that the wage order as it exists today requires payment of 30 minutes of wages for any incursion, however short, into the meal period, in addition to the hour of premium pay for the same incursion into the meal period. The wage order as amended and section 226.7 both expressly provide the remedy for failure to provide a meal period. That remedy is one hour of pay at the employee’s regular rate for each workday that the meal period is not provided. The wage order also requires payment for all “hours worked,” expressly defined as “the time during which an employee is subject to the control of an employer.” We therefore construe the wage order to require premium pay for the meal period violation and payment of minimum wages for all time worked – but no more. “Time worked” does not include time during which employees “are relieved of any duty or employer control and are free to come and go as they please.” (Brinker, supra, 53 Cal.4th at p. 1037; see Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 584 [finding persuasive the DLSE’s interpretation of “hours worked,” namely, ” ‘Under California law it is only necessary that the worker be subject to the “control of the employer” in order to be entitled to compensation.’ “].) Where there is no control, no compensation for “hours worked” is due. This construction fulfills both legislative mandates: that employees be paid for all time worked, and that employers provide an uninterrupted 30-minute meal period (or else pay an extra hour of compensation). We are persuaded neither the Legislature nor the IWC intended anything more.22 3. Civil penalties for failure to pay minimum wages Plaintiffs sought civil penalties under PAGA, which permits recovery in a representative action of any civil penalties that otherwise may be assessed for violations of the Labor Code. (§ 2699.) Plaintiffs sought penalties for the meal period violations under section 558, and for the minimum wage violations under section 1197.1. The trial court awarded penalties for the meal period violations, but found plaintiffs’ claim for penalties under section 1197.1 “fails because it is based on [plaintiffs’] invalid claim for failure to pay minimum wages.” Because we have found the trial court erred in finding no minimum wages were owed for time worked during the shortened meal periods, it necessarily follows that the trial court also erred in rejecting plaintiffs’ claim for civil penalties for the payment of “a wage less than the minimum . . . .” (§ 1197.1, subd. (a).) We note that, while defendant is subject to penalties for violations of both section 512 (the meal period claims) and section 1194 (the minimum wage claims), the court “may award a lesser amount than the maximum civil penalty amount specified . . . if, based on the facts and circumstances of the particular case, to do otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory.” (§ 2699, subd. (e)(2).) We express no opinion on what penalty, if any, should be awarded for the violation of section 1194 greater than the $53,293.50 already awarded for the violation of section 512. 4. Waiting time penalties. “The prompt payment provisions of the Labor Code impose certain timing requirements on the payment of final wages to employees who are discharged ([§ 201]) and to those who quit their employment (§ 202).” (McLean v. State of California (2016) 1 Cal.5th 615, 619.) “An ‘employer’ that ‘willfully fails to pay’ in accordance with sections 201 and 202 ‘any wages of an employee who is discharged or who quits’ is subject to so-called waiting time penalties of up to 30 days’ wages. (§ 203, subd. (a).)” (Ibid.)23 In the trial court, plaintiffs sought waiting time penalties. Their claim was based both on failure to treat the whole meal period as “time worked” and on failure to pay the meal period premium pay. Defendant contended, among other points, that its alleged violations were not willful. The trial court held no waiting time penalties applied, because no minimum wages were owed for the shortened meal periods, and because the meal period premiums were “not a wage that could trigger waiting time penalties.” The question whether violations of meal period regulations give rise to claims for waiting time penalties under section 203 is among the issues raised in a request for certification of questions from the Ninth Circuit Court of Appeals, recently granted by the California Supreme Court. (Stewart v. San Luis Ambulance, Inc. (9th Cir. 2017) 878 F.3d 883, request for certification granted Mar. 28, 2018, S246255.) We need not consider the issue in this case because we have concluded, contrary to the trial court’s ruling, that defendant owed minimum wages for time worked during the improperly shortened meal periods. Because this is a proper basis for plaintiffs’ claim for waiting time penalties under section 203, we must reverse the trial court’s judgment to the extent it denies recovery of waiting time penalties and remand for consideration of plaintiffs’ claim and defendant’s contentions. 5. The attorney fee appeal In its motion for attorney fees under PAGA and Code of Civil Procedure section 1021.5, counsel sought compensation for 1,745.80 hours of attorney time at rates of $650 and $600 an hour, producing a lodestar of $1,095,140. The trial court questioned the lodestar amount, but used it and applied a “negative” multiplier of 10 percent. Among other things, the court observed the number of hours was “suspect“; the hourly rates were “purely aspirational“; the case “addressed a minor problem and achieved a minor result“; the case (the law, the facts and the trial) was simple and strongly in plaintiffs’ favor (“not a highly risky venture“); and a cross-check confirmed “a 0.1 multiplier is appropriate,” because it yielded a fee that was 39 percent of the recovery. The court thus awarded attorney fees of $109,514. As noted at the outset, the amount of plaintiffs’ recovery will necessarily change as a result of our decision, and this may in turn affect the trial court’s analysis of the appropriate amount of the attorney fee award. We therefore vacate the award and remand to enable the court to exercise its discretion to reconsider the amount of the fee award, should it so choose. DISPOSITION The judgment in the merits appeal (B276420) is reversed. The cause is remanded to the trial court for further proceedings to address the calculation of minimum wages owing, the award of civil penalties based on failure to pay minimum wages, and reconsideration of waiting time penalties, as well as to allow plaintiffs to pursue their prevailing wage law claim. The trial court’s order awarding attorney fees (B279838) is vacated to permit the trial court to reconsider attorney fees following remand. The plaintiffs shall recover their costs on appeal. RUBIN, J. I concur: BIGELOW, P.J. Kaanaana et al. v. Barrett Business Services, Inc., et al. B276420; B279838 Grimes, J., concurring and dissenting. I concur with the majority opinion on all points except the application of the prevailing wage to the work performed by plaintiffs. In my view, the statutory provisions requiring payment of prevailing wage rates do not apply because plaintiffs are not engaged in “public works” within the meaning of the prevailing wage law (Lab. Code, §§ 1720-1861).1 I agree with the majority that “[w]ork done for irrigation, utility, reclamation, and improvement districts, and other districts of this type” is not confined to “construction work.” As the majority correctly points out, the prevailing wage law originally protected construction workers, and has been expanded over the years “to benefit and protect employees on public works projects.” (Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 987.) But as I see it, throughout the various expansions of the term “public works” in the section 1720 definition, the term has in every case involved work on “public works projects” that in some way concerns infrastructure – the physical facilities that constitute “public works projects” or public improvements.2 I have never seen the term applied to routine work (here, sorting recyclables) performed inside a publicly owned or operated facility, having nothing to do with work on or affecting the physical facility itself. As a consequence, I am not persuaded that the Legislature – either in 1937 or later – intended to treat “[w]ork done for . . . improvement districts” in a radically different fashion from work done for other agencies of the state and its political subdivisions. I believe my construction of the definition of “public works” is entirely consonant with the intent of the Legislature, is not contradicted by the limited legislative history available on the point, and is supported by principles of statutory construction that require us to read statutory provisions in a way that does not lead to disharmony with the rest of the statute. 1. The Pertinent Statutory Provisions For clarity, I repeat the text of the statutory provisions at issue and already quoted in the majority opinion. The prevailing wage law requires that, “[e]xcept for public works projects of one thousand dollars ($1,000) or less,” the general prevailing rate of per diem wages for similar work “shall be paid to all workers employed on public works.” (§ 1771.) This prevailing wage requirement applies only to work performed under contract (not to work carried out by a public agency with its own employees), and it applies to contracts for maintenance work. (Ibid.) Section 1720 defines “public works.” There are eight categories of “public works” included in the definition. The second of these is at issue in this case. The first category of public works (§ 1720, subd. (a)(1), hereafter section 1720(a)(1)) is: “Construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds . . . . For purposes of this paragraph, ‘construction’ includes work performed during the design and preconstruction phases of construction, including, but not limited to, inspection and land surveying work, and work performed during the postconstruction phases of construction, including, but not limited to, all cleanup work at the jobsite. For purposes of this paragraph, ‘installation’ includes, but is not limited to, the assembly and disassembly of freestanding and affixed modular office systems.” The second category of public works (§ 1720, subd. (a)(2), hereafter section 1720(a)(2)) is: “Work done for irrigation, utility, reclamation, and improvement districts, and other districts of this type. ‘Public work’ does not include the operation of the irrigation or drainage system of any irrigation or reclamation district . . . .” (For simplicity, I will refer to this provision as “[w]ork done for . . . improvement districts,” since a sanitation district is a “district[] of this type.“) There are six additional categories of public works. They are all what I would describe as construction-related activities or work on public improvements – that is, work that in one way or another affects the infrastructure that constitutes a public facility or project. Thus, public works also include: “Street, sewer, or other improvement work . . . .” (§ 1720, subd. (a)(3).) “The laying of carpet done under a building lease maintenance contract and paid for out of public funds.” (§ 1720, subd. (a)(4).) “The laying of carpet in a public building done under contract and paid for in whole or in part out of public funds.” (§ 1720, subd. (a)(5).) “Public transportation demonstration projects . . . .” (§ 1720, subd. (a)(6).) “Infrastructure project grants” from a fund pursuant to the Public Utilities Code. (§ 1720, subd. (a)(7)(A).) “Tree removal work done in the execution of a project under [section 1720(a)(1)].” (§ 1720, subd. (a)(8).) Every one of these categories – except, under the majority’s interpretation, section 1720(a)(2) – involves work that directly affects physical facilities or improvements, i.e., infrastructure work. 2. The Rules Governing Statutory Construction The rules of statutory construction have been repeated many times. “[W]e look first to the words of a statute, ‘because they generally provide the most reliable indicator of legislative intent.’ [Citation.] We give the words their usual and ordinary meaning [citation], while construing them in light of the statute as a whole and the statute’s purpose [citation]. ‘In other words, ” ‘we do not construe statutes in isolation, but rather read every statute “with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.” ’ ” ’ [Citation.] We are also mindful of ‘the general rule that civil statutes for the protection of the public are, generally, broadly construed in favor of that protective purpose.’ ” (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 529-530 (Pineda).) 3. The Proper Construction of Section 1720(a)(2) Plaintiffs contend, and the majority agrees, that “[w]ork done” for a sanitation district – section 1720(a)(2) – means that all work done for a sanitation district by a contractor’s employees, regardless of the nature of the work performed, constitutes a public works project covered by the prevailing wage law. In reaching this conclusion, the majority discusses the structure of section 1720, the statutory language, the legislative history, the administrative opinions that have construed section 1720(a)(2), and existing case authority. While I agree with some points the majority makes, I do not reach the same conclusion. In the end, it seems to me the intent of the Legislature, as reflected in the “Public Works” chapter of the Labor Code, confines the definition of “public works” – whether “construction” or not – to work on the infrastructure that constitutes a “public works project[].” Sorting recyclables in a facility owned by a sanitation district is not work that in any way affects the infrastructure itself, and accordingly is not covered by the prevailing wage law. a. The structure of section 1720 The majority begins by pointing out that section 1720(a) has eight separate categories of public works, several of which are not in any way construction work (maj. opn., ante, at p. 12). An example of this is subdivision (a)(4), “[t]he laying of carpet done under a building lease-maintenance contract.” (Maj. opn., ante, at p. 13.) I agree laying carpet is not construction – but it is plainly work that supports or affects a structure; it is installation of material in a physical facility. All of the eight categories of public works – except (on its face) section 1720(a)(2) – have that in common: they all involve work on or relating to buildings or other forms of physical infrastructure. I find nothing in the structure of section 1720 that lends credence to the majority’s belief that the Legislature intended something different in connection with section 1720(a)(2). b. The statutory language The majority finds it “[s]ignificant to this appeal,” and “overlooked by both parties,” that the section 1720 definition of “public works” applies to the Labor Code’s entire chapter on “Public Works,” and not just to the article on wages (§§ 1770-1784). (Maj. opn., ante, at p. 14.) I do not find that “significant,” for this appeal or otherwise. Certainly, our interpretation of “public works” in the case before us may be cited as precedential for the meaning of that term in any of the statutory provisions in the chapter on “public works.” The same is true of any case that has had or will have occasion to construe the term “public works” in any context. But I do not see, and the majority has not identified, any particular implications flowing from that fact. In general, when work is public work, it is subject both to the prevailing wage requirements and to any other rights or protections (workers compensation, anti-discrimination, and so on) that appear in the other articles of the public works chapter. And when work is not public work, it is not subject to the prevailing wage or any of the other provisions. This does not assist me in analyzing whether sorting recyclables in a facility owned by a sanitation district is public work subject to any of the provisions of the “Public Works” chapter of the Labor Code. c. The legislative history I agree, as I stated at the outset, that the prevailing wage law has been expanded in coverage since the 1930’s and is no longer limited to “employees . . . working on construction projects.” (Maj. opn., ante, at p. 17; see pp. 15-17 & fn. 14.) But that does not answer the question of what the Legislature meant when it said “[w]ork done for . . . improvement districts” in section 1720(a)(2). The majority relies heavily on the legislative history of the prevailing wage law, and principally upon a change made in 1937 from the original 1931 law. (Maj. opn., ante, at pp. 17-19.) As the majority explains (maj. opn., ante, at p. 17), the prevailing wage law has its origin in a 1931 statute. Section 1720 appeared in 1937, with the enactment of the Labor Code. The 1931 statute used the word “construction” in the predecessor to section 1720(a)(2), stating that “[c]onstruction work done for irrigation, utility, reclamation, improvement and other districts, or other public agency, agencies, public officer or body . . . shall be held to be public works within the meaning of this act.” (Stats. 1931, ch. 397, § 4, p. 911, italics added.) In the 1937 statute, the Legislature omitted the word “construction” in section 1720, subdivision (b) (now section 1720(a)(2)). The majority concludes this omission was significant, and that the definition of “public works” in the 1937 Labor Code was not intended “to be a restatement of the definition as it had appeared in the 1931 prevailing wage law.” (Maj. opn., ante, at p. 18.) I am not persuaded that the legislative history described in the majority opinion supports the majority’s conclusion, or indeed that it sheds any light on what the Legislature intended by the omission of the word “construction.” The majority relies entirely on a note from the California Code Commission Office that proposed the 1937 Labor Code. The note explained that the “provisions common to all [the] definitions” of “public works” that had existed in the 1931 prevailing wage law and in four other statutes (including a statute prohibiting the employment of aliens on public works) were placed in section 1720. (Maj. opn., ante, at p. 19.) I do not see how this tells us anything useful about what the Legislature intended in 1937 when the word “construction” was omitted from what is now section 1720(a)(2).3 In short, there is really no legislative history to enlighten us on the pertinent point. Perhaps that is why the Supreme Court said in 2012 that, “[w]hen the California Legislature established the Labor Code in 1937, it replaced the 1931 Public Wage Rate Act with a revised, but substantively unchanged, version of the same law.” (State Building & Construction Trades Council of California v. City of Vista (2012) 54 Cal.4th 547, 555, italics added.) The majority discounts the Supreme Court’s statement, because the case did not involve section 1720. (Maj. opn., ante, at fn. 15.) Of course that is true; cases are authority only for the points actually decided. Nonetheless, the statement appears in the court’s introductory explanation of California’s prevailing wage law. So, in the absence of any indication elsewhere that the Legislature understood the 1937 act was effecting a substantive change in the definition of “public works,” I am inclined to believe the Supreme Court was right, and the 1937 act was a “substantively unchanged[] version of the same law” (ibid.) – in all respects. I certainly agree with the majority that “[w]ork done” on its face is broader than “construction” work. (Maj. opn., ante, at p. 19.) But I cannot agree that the Legislature meant to broaden the definition to “any” work or “all” work done for improvement districts. I do not believe that in 1937 – a mere six years after the original prevailing wage statute – the Legislature intended to selectively extend the protections of the “Public Works” chapter to any and all employees of those who enter contracts with improvement districts, thus treating them differently than employees of contractors providing services to all other agencies of the state and its political subdivisions. In my view, construing “[w]ork done for . . . improvement districts” to mean any work done, as opposed to work done relating to the infrastructure of the improvement district, would have been a radical change, for which I would expect to find a clear statement of legislative intent. d. The administrative opinions and existing authorities That brings me to the case precedents that might assist us in construing section 1720(a)(2). In my view, none of them tells us very much about how to construe that provision. But what they do say comports with my view that to be covered by prevailing wage requirements, work must affect physical infrastructure in one way or another. I agree with the majority on two points. First, I agree this court owes no particular deference to the administrative opinions of the Department of Industrial Relations. (Maj. opn., ante, at pp. 20-22.) At the end of the day, ” ‘final responsibility for the interpretation of the law rests with the courts.’ ” (Morris v. Williams (1967) 67 Cal.2d 733, 748.) That is the case here.4 Second, as the majority points out (maj. opn., ante, at pp. 22-23), no court case has addressed the precise issue before us. And one case tells us that section 1720(a)(2) “may apply independently to cover some work for an improvement district not otherwise encompassed within [section 1720(a)(1)]’s enumerated categories.” (Azusa Land Partners v. Department of Industrial Relations (2010) 191 Cal.App.4th 1, 21 (Azusa).) With that I agree, as I do with the majority’s view that sections 1720(a)(1) and 1720(a)(2) have “equal dignity.” (Maj. opn., ante, at p. 23.) But Azusa refers to “some” work – not “any” or “all” work. I do not think Azusa can be stretched to indicate support for the broader proposition that any or all work done for an improvement district is public work. On the contrary, Azusa specifically speaks of “infrastructure work.” Azusa says: “Although the type of governmental entity for whom the infrastructure work may be performed under [section 1720(a)(2)] is more limited than the entities for whom work may be done under [section 1720(a)(1)], the range of tasks covered by [section 1720](a)(2) is broader.” (Azusa, supra, 191 Cal.App.4th at p. 20, italics added.) I agree the range of tasks is broader, but it is not infinite. I believe it is limited as the prevailing wage law has always been limited: to work on or supporting or affecting infrastructure. As Azusa states, the plaintiff there was “correct that . . . ‘[section 1720](a)(2) must be given meaning separate and apart from [section] 1720(a)(1).’ Nevertheless, the fact that some infrastructure is encompassed by more than one subdivision does not negate the viability of either one or the possibility that, in another case, other improvements would be considered public work under one provision, but not both.” (Azusa, supra, 191 Cal.App.4th at p. 22, italics in original, boldface added.) In sum, I do not see any suggestion in Azusa that any and all work done for an improvement district constitutes “public works.” On the contrary, Azusa characterizes the “work” that may be performed under section 1720(a)(2) as “infrastructure work” and says only that section 1720(a)(2) “may apply independently to cover some work” not otherwise encompassed in section 1720(a)(1). (Azusa, supra, 191 Cal.App.4th at pp. 20, 21, italics added.) It is apparent to me that the court’s reference to “some work” was a reference to infrastructure work of some kind – not to any and all work done for an improvement district. In the end, both the majority and I can pluck out specific language from Azusa, a complex case arising in a wholly different context,5 or from other cases on other topics, to support one point or another.6 But I think one general point is important, and that is where the Azusa court “reject[ed] [the plaintiff developer’s] invitation to parse the language of subdivision (a)(2) in isolation, disregarding the other subdivisions of section 1720 and the context of the overall statutory scheme to which it belongs.” (Azusa, supra, 191 Cal.App.4th at p. 22, italics added.) It is the italicized point I find to be most pertinent to the resolution of this case. If viewed in complete isolation, one might conclude that “[w]ork done for . . . improvement districts” is, as plaintiffs contend and as the majority holds, unqualified and unlimited in scope. But controlling authorities on statutory construction do not permit us to read one provision of a statute in isolation from the others, and in isolation from “the context of the overall statutory scheme to which it belongs.” (Azusa, supra, 191 Cal.App.4th at p. 22.) The Supreme Court directs us to construe the words of a statutory provision ” ’ ” ’ “with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.” ’ ” ’ ” (Pineda, supra, 51 Cal.4th at p. 530; City of Huntington Beach v. Board of Administration (1992) 4 Cal.4th 462, 468 [“all parts of a statute should be read together and construed in a manner that gives effect to each, yet does not lead to disharmony with the others“].) Adhering to that directive, I cannot embrace a construction of section 1720(a)(2) that is untethered to the decades-long history during which prevailing wage requirements have been applied to various kinds of work involving or affecting physical facilities or infrastructure – but never, until now, to the routine operations that may be performed inside but not affecting those facilities. I see no evidence the Legislature intended that all work done for improvement districts, without limitation – unlike that for all other public agencies – was to be compensated at prevailing wage rates, and I can think of no reason justifying such an anomalous result. GRIMES, J.
Notes
“(a) As used in this chapter, ‘public works’ means:
“(1) Construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds, except work done directly by any public utility company pursuant to order of the Public Utilities Commission or other public authority. For purposes of this paragraph, ‘construction’ includes work performed during the design and preconstruction phases of construction, including, but not limited to, inspection and land surveying work, and work performed during the postconstruction phases of construction, including, but not limited to, all cleanup work at the jobsite. For purposes of this paragraph, ‘installation’ includes, but is not limited to, the assembly and disassembly of freestanding and affixed modular office systems.
“(2) Work done for irrigation, utility, reclamation, and improvement districts, and other districts of this type. ‘Public work’ does not include the operation of the irrigation or drainage system of any irrigation or reclamation district, except as used in
Section 1778 relating to retaining wages.“(3) Street, sewer, or other improvement work done under the direction and supervision or by the authority of any officer or public body of the state, or of any political subdivision or district thereof, whether the political subdivision or district operates under a freeholder‘s charter or not.
“(4) The laying of carpet done under a building lease-maintenance contract and paid for out of public funds.
“(5) The laying of carpet in a public building done under contract and paid for in whole or in part out of public funds.
“(6) Public transportation demonstration projects authorized pursuant to
Section 143 of the Streets and Highways Code .“(7)(A) Infrastructure project grants from the California Advanced Services Fund pursuant to
Section 281 of the Public Utilities Code .“(8) Tree removal work done in the execution of a project under paragraph (1).”